"I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife’

If someone loses 'mental capacity' that impacts on their individual decisions.

That's all. Yes, I totally understand this is a case of a woman losing capacity over time, so how is she protected.

It does seem.appropriate for there to be legislation to protect any adult who can no longer give/remove consent.

@Smotheroffive - have you read the article or any of the responses on the thread?

This woman is not in danger, her husband is not insisting he be allowed to have sex with her, in fact, the judge has rightly suggested that rathe than jut blindly sign an order that the case be tested in court so that there is a clear legal framework to support everyone in this situation. The post from @XXcstatic explains it very well.

You are making some valid points about consent, but the points you are making are not relevant to this scenario. Yes, she probably wouldn't be able to consent to marriage now, but she had the capacity to twenty years ago when they first got married. Given the ages involved, I also don't get your point about statutory 'rape marriage' in South Carolina - it sounds horrendous, but not sure what it has to do with this?!

I do think the state should stop you from doing so, as her rights to consent and not be raped trump his 'need' every time.

What sick man has sex like this? What if she were paralysed/speechless/dead? Would it matter to him that he were using here body this way when he couldn't be sure whether she was in full agreement.

I keep thinking of it the other way round and its very sick making.

Yes, she was able to sign up to marriage, but she isn't any more, and beinbwithin a marriage has 'conferred' an institution in which to continue something that should have stopped.

Using someone for sex isn't something that should be allowed to continue just because she can't consent any more.
Pooor pooor woman . So glad SS are involved in protecting her.

Is this not where the language about what a "right" is becomes somewhat confused?

There are rights that you are entitled to, and rights that are actually the right to be free to do something.
E.g. the right to family life means the state should not stop you from having a family life. It doesn't mean that having a family is your right, and therefore the state must provide you with one.

Along the same vein, the right to have sex with your wife means the state should not stop you from doing so, not that it is something you are entitled to if your wife does not consent.

smother I think they said her condition had deteriorated. She was originally competent to consent to marriage and sex.

Agree with all those saying that this is not an issue of a husband trying to have sex with his wife against her will. One of the problems with the judge's ill-chosen, or mis-quoted, comment is that opprobrium is now being heaped on the husband unfairly.

The problem with saying that, if you lack capacity to make other decisions (e,g financial/healthcare), you also lack the capacity to choose to have sex, is that this would mean many people with learning disabilities or acquired brain injuries never being allowed to have sex, when they might very much want to. It would mean that anyone who has sex with them is committing a crime. This would include, for example, couples with Down's syndrome in a long-term loving relationship - with each of them committing sexual assault every time they have sex, even if the sex is very much wanted by both.

This is what the court case is testing. Not - despite the reports- a husband's right to have sex with his wife. It's really the other way round- it's about the wife's right to a sexual relationship despite her intellectual impairment and without inadvertently criminalising her partner.

• A woman that's not capable of consenting to sex

Anwoman that's not capable of competing to sex, or not, is also not capable of competing to a marriage (which is enabling and facilitating sex without consent).

How can that ever be policed though? This happens a lot to disabled women.

That makes no sense Smother. What is it that you are asking?

How can this person consent to legal marriage even (which is what enables and facilitates unconsensual sex which he was already having?)

I assume it's because the social service involvement has elevated the case to the Court of Protection.

The husband in this case has offered to give an undertaking that he will not have sex with his wife. The importance of the legal judgement is how it will affect situations when the sexual partner of someone who lacks capacity to make this decision doesn't agree to this undertaking.

Under the Mental Capacity Act 2005, sex is an 'exempted decision' - no-one can make a 'best interests' decision on behalf of someone who lacks capacity. This case will test at what point and on what terms that stage is reached and, when if at all, the capacity decision can be remade (ie the person recovers their capacity). It's a notoriously complex legal and practice area, and it's important that the legal system tries to establish some clarity and practical frameworks.

This must happen a lot (ie one person in a couple loosing capacity for reasons such as dementia amongst other things). I wonder why this case went to court, I would have thought it must be due to DOLS/social services involvement escalating the situation which really makes me wonder why they felt the need to do that in this particular case.

In south Carolina a man may avoid statutory rape by marrying the underage girl!!
It's actually called a 'rape marriage'
Many states categorically refuse to raise the legal age despite all attempts to raise it.
So, much changes, heh, when it comes to protecting underage girls

You can lack capacity for many reasons including memory loss and severe OCD, it doesnt meat that you shouldn't be allowed to have sex with your husband of 20 years.

This is a ban also for her. It would need to be properly evaluated to apply such draconian restraints to a married couple.

Pleased to see this thread because I was gobsmacked when I heard that sentence on the radio "cannot think of a more fundamental human right than for a man to have sex with his wife".

When I heard that the husband has volunteered to sign an Order saying he won't have sex with her, but the judge wanted it to be tried anyway, I had an uncomfortable feeling of perversion and intrusion.

But I don't think it's that anymore. I think it's that the judge recognises that this is a ticking time bomb of an issue that needs to be established. His comment to me sounds like he is saying that, if the Order is signed, the man and his wife will no longer be able to enjoy consensual sex if they both want to, and that does not sit comfortably with me either.

Irresponsible reporting in my view to intentionally report this one sentence without any context, knowing how it will sound.

It's not that clear cut.

A competent adult who enthusiastically consents at the start of marriage can become an equally enthusiastic but no longer competent adult. Then what?

If you don't have the ability to consent why would someone want to have sex within someone who can't consent - wholly abhorrent, and yes, I would call that rape.

Would any woman want to take advantage of man this way, not knowing if he wanted to because of lack of capacity. How awful

It's a much more fundamental human right to be able to refuse sex if it is not wanted. I'm disgusted by the way that judge phrased that comment

Mr Justice Hayden has written some really thoughtful and humane judgements. We shouldn't rush to hang, drawn and quarter him on the basis of one short quote which was probably taken out of context.

Why isn't this archaic fucker of a judge being kicked out of a job.

I think you've misunderstood it, as others have said.

It doesn't say fundamental right to rape his wife, it says to have sex. This is not the wife saying no, this is council officials. So yes taking awayn the right for married couples to have sex is a huge deal, it just so happens it applies to a man and is worded as such.

I thought exactly the same thing when I read it OP!! I was shocked!

I think judge needs to be succinct in this. This waffling is insufficient if it can be so badly misconstrued

Why isn't this archaic fucker of a judge being kicked out of a job.

How do they even get away with this level of wrong! And illegal!

It's a horrible phrase, and a case which bears watching. I can't think it is as the reporting makes it appear, though. I think long, complicated proceedings with SS have been summarised as 'can he have sex with his incapacitated wife'. And the judge's 'let's take this fundamental part of marriage seriously, folks' has been reduced to 'man should be able to have sex'.